R v Tran - [2024] NSWSC 116

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Tran [2024] NSWSC 116
Hearing dates: 24 March 2023, 14 September 2023, 4 October 2023, 23 October 2023, 29 November 2023 and 11 December 2023
Date of orders: 16 February 2024
Decision date: 16 February 2024
Jurisdiction: Common Law
Before: Lonergan J
Decision:
The offender is sentenced to a term of imprisonment of 28 years commencing on 3 February 2021 and ending on 2 February 2049 with a non-parole period of 21 years commencing on 3 February 2021 and ending on 2 February 2042. The offender will be first eligible for release to parole on 2 February 2042.

Catchwords:
SENTENCE – murder – stabbing – trial before jury – initially allegations of mental illness and substantial impairment – guilty pleas entered to all charges on day 10 of the trial – stabbing motivated by obsession and jealousy – remorse – mental illness issues – prodromal schizophrenia diagnosed after offences – De La Rosa factors – specific and general deterrence
SENTENCE – break and enter with intent to commit serious indictable offence – assault – using carriage service to harass – s 166 Criminal Procedure Act

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Milat v R; Klein v R [2014] NSWCCA 29
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39

Category: Principal judgment
Parties: Rex (Crown)
David Tran (Offender)
Representation:
Counsel:
R Kotsis (Crown)
N Carroll (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
LY Criminal Lawyers (Offender)

File Number(s): 2020/00227489
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the publication or disclosure of any information revealing or tending to reveal the identity of the deceased’s daughter is supressed in furtherance of the statutory protection provided by s 15A of the Children Criminal Proceedings Act 1987 (NSW); and on the grounds that pursuant to s 8(1)(e), the order is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

JUDGMENT

On 7 November 2022, the offender, David Tran, was arraigned before a jury on an indictment that contained three counts.
All the offences on the indictment took place on 3 August 2020. The first count charged the offender with entering the house of Daiane Pelegrini at Oatlands, with intent to commit a serious indictable offence, namely intimidation (s 111(1), Crimes Act 1900 (NSW)). The second count of the indictment charged the offender with the murder of Daiane Pelegrini in contravention of (s 18(1)(a), Crimes Act). The third count of the indictment charged the offender with assaulting Steven Qaqos occasioning actual bodily…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tran

Details

AGLC: R v Tran [2024] NSWSC 116
Case: [2024] NSWSC 116
Decision Date: 16 February 2024

CaseChat Overview and Summary

In the case of R v Tran, the appellant was convicted of murder, breaking and entering with intent to commit a serious indictable offence, assault, and using a carriage service to harass. The appellant had initially been charged with murder, stalking, and using a carriage service to menace, threaten, harass or offend. The appellant stabbed the victim, a woman with whom the appellant had been in a relationship, 43 times, motivated by an obsession and jealousy. The court heard that the appellant had been diagnosed with prodromal schizophrenia after the offences were committed. The appellant entered guilty pleas to all charges on the 10th day of the trial. The appellant was sentenced to a sentence of imprisonment, with a non-parole period of 18 years for the murder charge, and concurrent sentences for the other offences. The appellant appealed the sentence, arguing it was excessive.

The appellant argued that the sentence was excessive and did not accord with the principles of proportionality, parity, and denunciation. The appellant submitted that the trial judge failed to properly consider the mitigating factors, including the appellant's remorse, mental health issues, and background. The appellant also submitted that the sentence did not accord with the principle of parity, as other offenders who committed similar offences had received lesser sentences. The appellant further submitted that the sentence did not achieve the aims of denunciation and deterrence, as the appellant's mental health issues were a significant mitigating factor.

The court found that the sentence was not excessive, and that the trial judge had properly considered the mitigating factors. The court found that the appellant's mental health issues were a significant mitigating factor, but that the gravity of the offences, the appellant's lack of remorse, and the need for specific and general deterrence outweighed the mitigating factors. The court found that the sentence accorded with the principles of proportionality, parity, and denunciation. The court found that the sentence achieved the aims of denunciation and deterrence, and that the sentence was not excessive. The court dismissed the appeal.

The court made no orders as to costs.

Orders